Strict Enforcement of State Electioneering Laws Problematic

Election officials who interpret their state’s prohibitions against electioneering as prohibiting voters from wearing campaign buttons or T-shirts into the polling places on Election Day may be strictly within the law, but a Washington and Lee University expert on the First Amendment believes the interpretation would be unconstitutional.

Stories and e-mail chains have raised the issue that officials in some states will be strict in their interpretation of such laws.

“It’s not just urban legend,” said Rodney A. Smolla, dean of Washington and Lee’s School of Law. “Most states have laws against electioneering, and some of those laws — those in Texas and New York, for instance — do have prohibitions against voters having what is usually called ‘campaign material,’ which could include T-shirts.”

The electioneering laws, according to Smolla, were designed to target pressure tactics by professionals and were not aimed at the average voters.

“I support our attempts to make individuals’ voting experience hassle-free,” Smolla said. “In that sense, the laws are sound and it’s good for the political process.

“But I don’t think that the state legislatures that passed these laws had in mind average voters who feel passionately about a candidate or an issue and choose to express that passion by wearing a button or a T-shirt.”

Smolla said that he believes strict enforcement is not only unnecessary but also unconstitutional.

“I think we have a First Amendment right to wear T-shirts promoting our political preference, even to the polling place,” Smolla said. “In addition, wearing such a T-shirt does not damage to the integrity of the political process.”